Instruments of International Organisations

Declarations and other instruments issued by International Organisa-tions take up elements that have already been mentioned in the context of the human rights treaties, but there are instances in which the ten-dency to achieve the guarantee of free scientific research is stronger than in binding instruments.

Along this line, the General Assembly continued to emphasise the beneficiary aspect of scientific research as it did in the 1948 human rights declaration. In its Declaration on the Use of Scientific and Tech-nological Progress in the Interests of Peace and for the Benefit of Man-kind³⁷, the General Assembly proclaimed:

“All states shall promote international co-operation to ensure that the results of scientific and technological developments are used in the interests of strengthening international peace and security, free-dom and independence, and also for the purpose of the economic and social development of peoples …”

33 610 U.N.T.S. 205.

34 323 U.N.T.S. 1513.

35 1760 U.N.T.S. 79.

36 UN Doc. E/CONF.82/15 (I.L.M. 28 (1989), pp. 493 et seqq.).

37 UN Doc. A/RES/30/3384 (10 November 1975).

C. Constitutional Basis: The Freedom of Science 40

It took until 1998 when the General Assembly endorsed the UNESCO Universal Resolution on the Human Genome and Human Rights³⁸ which contains, in its Article 12 (b) the following passage:

“Freedom of research, which is necessary for the progress of knowl-edge, is part of freedom of thought. The applications of research, in-cluding applications in biology, genetics and medicine, concerning the human genome, shall seek to offer relief from suffering and im-prove the health of individuals and humankind as a whole.”

Along the same lines, it is one of the aims endorsed in Article 2 of the Universal Declaration on Bioethics and Human Rights (2005)

“… (d) to recognize the importance of freedom of scientific research and the benefits derived from scientific and technological develop-ments, while stressing the need for such research and developments to occur within the framework of ethical principles set out in this Declaration and to respect human dignity, human rights and funda-mental freedoms;…”³⁹

It is submitted that statements bearing that content, issued in an ex-tremely controversial field (cf. below E. II. 2.) can provide an indication for the current meaning of freedom of science. Along the same line, the World Bank, in a Report of 2000, defined academic freedom as

“… the right of scholars to pursue their research, to teach, and to publish without control or restraint from the institutions that em-ploy them. (…) Academic freedom is not an absolute concept; it has limits and requires accountability. It recognizes the right of academ-ics to define their own areas of inquiry and to pursue the truth as they see it.”⁴⁰

Again, freedom of science is emphasised as an individual right, but lim-its and accountability are equally stressed.

38 UNESCO, Records of the Twenty-Ninth Session, 1997, 29 C/Res. 16 (11 November 1997), endorsed by UN Doc. A/RES/53/152 (9 December 1998).

39 UNESCO Doc. C/Res. 24 of 19 October 2005, emphasis by the authors.

On that document see Harald Schmidt, “Bioethics, Human Rights and Univer-salisation: a Troubled Relationship? – Observations on UNESCO’s Universal Declaration on Bioethics and Human Rights”, in: Silja Vöneky/Cornelia Hage-dorn/Miriam Clados/Jelena von Achenbach (eds.), Legitimation ethischer Entscheidungen im Recht, 2009, pp. 275-295.

40 The World Bank (ed.), Higher Education in Developing Countries, 2000, p. 60. The definition was taken without amendment from Barbara Chernow (ed.), “Art. Academic Freedom”, The Columbia Encyclopedia, 5th ed. 1993.

C. Constitutional Basis: The Freedom of Science 41 5. Instruments of Non-Governmental Organisations

The great variety of non-governmental organisations (NGOs) in the field of science has yet to be shown (below D. IV. 2.). They are also partly active in formulating general standards for the international gov-ernance of science. Thus, the Lima Declaration on Academic Freedom and Autonomy of Institutions of Higher Education (1988) is revelatory.

It was issued by the World University Service and provides for a broad guarantee of freedom of science:

“‘Academic freedom’ means the freedom of members of the aca-demic community, individually or collectively, in the pursuit, devel-opment and transmission of knowledge, through research, study, discussion, documentation, production, creation, teaching, lecturing and writing.”

As an NGO to support university studies, the WUS is of course not en-titled to issue legally binding statements in any respect, but the content of the declaration is illustrative. Freedom of science cannot be limited to one area or another of scientific activity, but it needs a more compre-hensive protection.

6. Contents and Effective Potential of the International Standard The overall impression gained from an analysis of existing international rules including rules of doubtful binding force or of certainly non-binding nature is ambiguous. On the one hand, there is rarely a clear guarantee of freedom of science in an at least regionally binding docu-ment; Article 13 of the EU’s newly binding human rights charter is cer-tainly the strongest emanation of such a right. On the other hand, some elements are included into the various instruments which delineate a picture of the idea of a global freedom of science and which also convey the impression of continuous progress in the establishment of such a freedom, starting from the mere recognition of the benefits of (free) sci-ence, encompassing free publication and the ownership of intellectual property and finally ending up in definitions including a broad range of scientific activities.

C. Constitutional Basis: The Freedom of Science 42

III. Freedom of Science in National Constitutions 1. Methodological Remarks

In search of global constitutional rights and values, the scrutiny of ex-isting public international legal principles and rules is not the only vi-able method, although of course there is little reasoning other than the detection of whatever value within positive public international law that would be of overall convincing evidence. The inclusion of domestic constitutional law therefore needs a sound methodological reflection.

As far as the content of the constitutional guarantees is concerned, it will be shown that all divergences in contents notwithstanding, there is widespread recognition of at least some elements of the guarantee of freedom of science.

The central public international legal norm to integrate aspects of do-mestic constitutional law into public international law is Article 38 (1) (c) of the Statue of the International Court of Justice. Certainly, “… the general principles of law recognised by civilized nations; …” were meant to be core principles of the rule of law, and thus very often pri-vate law rules, in the times of public international law as a law of co-ordination. The constitutional shift of public international law however is dependent upon the modification of that meaning. If public interna-tional law is built upon common constituinterna-tional values, their recognition has to be achieved even if such values are – for whatever reason – basi-cally entrenched in domestic constitutions and not in international in-struments.

The doubtful, historically rooted term “civilized nations” put aside, it is obvious that the formulation of a general principle, in particular if con-stitutional value is ascribed to it, necessitates overwhelming if not unanimous recognition within the constitutional texts under scrutiny⁴¹. This necessity raises the central problems of efforts in comparative law that go beyond the mere comparison of a limited number of jurisdic-tions: The more jurisdictions are integrated into an analysis, the smaller the relation between effort and outcome, and the greater the difficulties

41 Frances T. Freeman Jalet, “The Quest for the General Principles of Law Recognized by Civilized Nations – a Study”, UCLA Law Review 10 (1962-1963), pp. 1041-1086 at pp. 1044 et seqq.; Béla Vitanyi, “Les positions doctrina-les concernant le sens de la notion de ‘principes généraux de droit reconnus par les nations civilisées’”, Revue Générale de Droit International Public 86 (1), 1982, Paris, pp. 48-116.

C. Constitutional Basis: The Freedom of Science 43 in gathering valid material due to linguistic deficiencies that are not eas-ily overcome⁴².

2. Constitutional Provisions

a) Categorisation

These methodological reflections and limitations borne in mind, the constitutional picture is manifold and not free of controversies, above all if the internal practice and academic discussions within the various jurisdictions are taken into account. For an easier assessment it is neces-sary to categorise the different constitutional provisions, albeit with the disadvantage of simplifications. Three main groups can be considered:

b) Overall Guarantee

The constitutions of a considerable number of States of the world plainly guarantee free scientific activity and academic freedom. This ap-plies for most States of the EU, laying a basis for the fundamental right as guaranteed in the EU’s Human Rights’ Charter: Austria⁴³, Bulgaria⁴⁴, Czech Republic⁴⁵, Estonia⁴⁶, Finland⁴⁷, Hungary⁴⁸, Italy⁴⁹, Germany,

42 Cf. Matthias Ruffert, “The Transformation of Administrative Law as a Transnational Methodological Project”, in: id. (ed.), The Transformation of Administrative Law in Europe – La mutation du droit administrative en Europe, 2007, pp. 3-52 at p. 9.

43 Article 17 (1) of the Basic Law on the General Rights of Nationals of the Republic of Austria (1867): “Knowledge and its teaching are free.” (translated by the Federal Chancellery, available at http://www.ris.bka.gv.at/Dokument.w xe?Abfrage=Erv&Dokumentnummer=ERV_1867_142&ResultFunctionToken=

1c7a0cca-bd32-41f6-a6c1-984e4e34c8ff&Titel=Basic+Law+on+the+General+R ights+of+Nationals+%281867%29&Quelle=&ImRisSeit=Undefined&ResultP ageSize=50&Suchworte).

44 Article 54 (2) Constitution of the Republic of Bulgaria (1991): “Artistic, scientific and technological creativity shall be recognized and guaranteed by the law.” (source: the National Assembly of the Republic of Bulgaria; available at http://www.parliament.bg/?page=const&lng=en).

45 Article 15 (1) and (2) of the Charter of Fundamental Rights and Basic Freedoms (1992): “(1) The freedom of thought, conscience, and religious convic-tion is guaranteed. Everyone has the right to change her religion or faith or to be non-denominational. (2) The freedom of scholarly research and of artistic

crea-C. Constitutional Basis: The Freedom of Science 44

Greece⁵⁰, Latvia⁵¹, Lithuania⁵², Poland⁵³, Portugal⁵⁴, Slovakia⁵⁵,

tion is guaranteed.”. Art. 3 of the Constitution of the Czech Republic (1992):

“An integral component of the constitutional system of the Czech Republic is the Charter of Fundamental Rights and Freedoms.” (source: the Parliament of the Czech Republic; available at http://www.psp.cz/cgi-bin/eng/docs/laws/1993/2.

html).

46 Article 38 Constitution of the Republic of Estonia (1992): “[Freedom of Science and Teaching] (1) Science and the arts, and their instruction, shall be able to exist freely. (2) Universities and research institutions shall be autonomous, within the limits prescribed by law.” (source: the President of the Republic of Estonia; available at http://www.president.ee/en/estonia/constitution.php).

47 Section 16 Constitution of the Republic of Finland (1999): “Educational rights: (1) Everyone has the right to basic education free of charge. Provisions on the duty to receive education are laid down by an Act. (2) The public authorities shall, as provided in more detail by an Act, guarantee for everyone equal oppor-tunity to receive other educational services in accordance with their ability and special needs, as well as the opportunity to develop themselves without being prevented by economic hardship. (3) The freedom of science, the arts and higher education is guaranteed.” (translated by the Ministry of Justice; available at http://www.finlex.fi/en/laki/kaannokset/1999/en19990731?search[type]=pika&

search[pika]=Constitution).

48 Article 70G Constitution of the Republic of Hungary (1949): “(1) The Republic of Hungary shall respect and support the freedom of scientific and ar-tistic expression, the freedom to learn and to teach.(2)Only scientists are entitled to decide in questions of scientific truth and to determine the scientific value of research.” (source: the Constitutional Court of the Republic of Hungary; avail-able at http://www.mkab.hu/index.php?id=constitution).

49 Article 33 Constitution of the Italian Republic (1947): “[Freedom of Arts, Science and Teaching] (1) The arts and sciences as well as their teaching are free.” (source: the Chamber of Deputies; available at http://legxven.camera.it/

cost_reg_funz/345/346/listaArticoli.asp).

50 Article 16 Constitution of Greece (1975) “[Education]: (1) Art and sci-ence, research, and teaching are free and their development and promotion con-stitutes a state obligation. Academic freedom and the freedom to teach do not override the duty to obey the Constitution.” (translated by George Katrougalos;

available at http://www.servat.unibe.ch/icl/gr00000_.html).

51 Article 113 Constitution of Latvia (1922): “[Research, Art, Copyright, Pa-tents] The State shall recognise the freedom of scientific research, artistic and other creative activity, and shall protect copyright and patent rights.” (transla-tion by the Latvia Law Institute, available at http://www.humanrights.lv/doc/

latlik/satver~1.htm).

C. Constitutional Basis: The Freedom of Science 45 nia⁵⁶ and Spain⁵⁷. Other EU Member States provide a guarantee at statu-tory level⁵⁸. The German guarantee is very well developed in the

52 Article 42 Constitution of the Republic of Lithuania (1992): “Culture, sci-ence and research, and teaching shall be free. The State shall support culture and science, and shall take care of the protection of Lithuanian historical, artistic and cultural monuments and other culturally valuable objects. The law shall protect and defend the spiritual and material interests of an author which are related to scientific, technical, cultural, and artistic work.” (source: the Constitutional Court of the Republic of Lithuania; available at http://www.lrkt.lt/Documents2 _e.html).

53 Article 73 Constitution of the Republic of Poland (1997): “The freedom of artistic creation and scientific research as well as dissemination of the fruits thereof, the freedom to teach and to enjoy the products of culture, shall be en-sured to everyone.” (translated by Albert Pol and Andrew Caldwell; available at http://www.sejm.gov.pl/prawo/konst/angielski/kon1.htm).

54 Article 42 Constitution of Portugal (1976): “Freedom of Cultural Crea-tion: (1) Intellectual, artistic, and scientific creation are unrestricted. (2) This freedom includes the right to invention, production, and dissemination of scien-tific, literary, or artistic works, including legal protection of copyright.” (source:

the Assembly of the Republic of Portugal; available at http://app.parlamento.

pt/site_antigo/ingles/cons_leg/Constitution_VII_revisao_definitive.pdf).

55 Article 43 Constitution of the Slovak Republic (1993): “(1) Freedom of scientific research and in art are guaranteed. The rights to the results of creative intellectual activity are protected by law. (2) The right of access to the cultural heritage is guaranteed under conditions defined by law.” (source: Government Office of the Slovak Republic; available at http://www.vlada.gov.sk/9717/part-2-fundamental-rights-and-freedoms.php).

56 Article 59 Constitution of the Republic of Slovenia (1991): “(Freedom of Science and the Arts) The freedom of scientific and artistic endeavour shall be guaranteed.” (source: the National Council of the Slovak Republik; available at http://www.us-rs.si/o-sodiscu/pravna-podlaga/ustava/?lang=1).

57 Article 20 Constitution of Spain (1978): “[Specific Freedoms, Restrictions]

(1) The following rights are recognized and protected: (b) Literary, artistic, sci-entific, and technical production, and creation. (c) Academic freedom.” (source:

the Spanish Senate (Upper House); available at http://www.senado.es/constitu_

i/index.html).

58 Cf. France: Law on Higher Education (1983), available (in French) at http://admi.net/jo/loi84-52.html; The Netherlands: The Higher Education and Scientific Research Act (1992), available (in Dutch) at http://www.win.tue.nl/

reglementen/whw26092003.pdf; The United Kingdom: Education Reform Act (1988), available at http://www.legislation.gov.uk/ukpga/1988/40/contents. Cf.

further Thomas Mann, “Forschungsfreiheit und akademische Freiheit”, in: F.

Sebastian M. Heselhaus and Carsten Nowak (eds.), Handbuch der

Europäi-C. Constitutional Basis: The Freedom of Science 46

prudence of the Federal Constitutional Court (Bundesverfassungs-gericht) with a particular emphasis on the institutional guarantee of universities following the Humboldtian ideal⁵⁹, although this guarantee has been weakened in more recent judgments⁶⁰.

None of these guarantees is unlimited, of course: Like all human rights, freedom of science is subject to limitations necessary in democratic so-cieties. Those limitations are valid, if only they are founded in valid leg-islation and – in most jurisdictions – are proportionate.

Outside the EU, there are several constitutional jurisdictions providing similar guarantees. Though in Japan the proximity to freedom of speech (cf. below c.) is emphasised⁶¹ by some authors, Article 23 of the Japa-nese Constitution (1946) is similar in its actual wording and intellectu-ally linked to the comprehensive German guarantee (cf. above fn. 59)⁶². The Russian Constitution (1993) provides in its Article 44 (1):

“Everyone shall be guaranteed the freedom of literary, artistic, scien-tific, technical and other types of creative activity, and teaching”⁶³.

schen Grundrechte, 2006, pp. 745-770 paras. 37 et seqq.; Thomas Groß (supra note 6).

59 Entscheidungen des Bundesverfassungsgerichts 15, 256; 35, 79 (leading ca-se); 47, 327; 51, 369; 55, 37; 85, 360; 88, 129; 93, 85; 111, 333.

60 Particularly in Entscheidungen des Bundesverfassungsgerichts 111, 333.

61 Ken Nemori, “Grenzen der Wissenschafts- und Forschungsfreiheit in der japanischen Verfassung und das Klonen von Menschen”, in: Rainer Wahl (ed.), Verfassungsrecht der Humangenetik im deutsch-japanischen Vergleich, 2002, pp. 224-255 at p. 233, available at: http://www.freidok.uni-freiburg.de/volltex te/5029/pdf/Verfassungsrecht_der_Humangenetik_im_deutsch_japanischen_V ergleich.pdf.

62 Article 23 Constitution of Japan (1946): “Academic freedom is guaran-teed.” On this provision and its relationship to the German guarantee see Ken-ichi Moriya, “Wissenschaftsfreiheit. Beobachtungen zum deutschen und japani-schen juristijapani-schen Diskurs”, Rechtsgeschichte 7 (2005), pp. 74-85.

63 English translation (by “Garant-Service”) of the Russian Constitution available at http://www.constitution.ru/en/10003000-01.htm. Cf. on this Article the Decision of the Plenum of the Supreme Court of the Russian Federation No. 15 of 19 June 2006 on the Issues Emerging with the Courts When Process-ing Civil Cases PertainProcess-ing to Application of the Legislation on the Copyright and Adjacent Rights, available (in Russian) at http://www.supcourt.ru/vscourt_

detale.php?id=4349.

C. Constitutional Basis: The Freedom of Science 47 Nominally, the guarantee is as wide as in other European countries⁶⁴. Impairment of this freedom is suffered in particular due to the insecure economic situation⁶⁵.

Finally, there are States which nominally provide for a comprehensive guarantee of freedom of science, but where there is only limited benefit from such guarantee in constitutional practice. It is with this limitation that Article 47 of the Constitution of the People’s Republic of China (1982) must be read:

“Citizens of the People’s Republic of China have the freedom to en-gage in scientific research, literary and artistic creation and other cultural pursuits. The state encourages and assists creative endeavors conducive to the interests of the people that are made by citizens engaged in education, science, technology, literature, art and other cultural work.”⁶⁶

In Saudi Arabia, Islamic legal rules and principles are superimposed upon the constitutional guarantee in Article 29 of the Constitution (1992):

“The state safeguards science, literature and culture; it encourages scientific research; it protects the Islamic and Arab heritage and con-tributes toward the Arab, Islamic and human civilization.”⁶⁷

Nonetheless, in both of these States, science is of major importance – above all to economic development – and Saudi Arabia even undertakes considerable efforts to attract foreign scientists⁶⁸.

64 Anna Smolentseva, “Challenges to the Russian academic profession”, Higher Education 45 (2003), pp. 391-424 at p. 417.

65 Brian Levin-Stankevich and Alexander Savelyev, “The Academic sion in Russia”, in: Philip Altbach, (ed.), The International Academic Profes-sion. Portraits of Fourteen Countries, 1996, pp. 569-614 at pp. 590 et seq.

66 Cf. also its Article 20: “The state promotes the development of the natural and social sciences, disseminates scientific and technical knowledge, and com-mends and rewards achievements in scientific research as well as technological discoveries and inventions.” English translation available at http://www.gov.cn/

english/ 2005-08/05/content_20813.htm (Source: China Yearbook 2004).

67 Cf. English translation: Axel Tschentscher (ed.), International Constitu-tional Law, available at http://www.servat.unibe.ch/icl/sa00000_.html.

68 Sebastian Steinecke (supra note 13), manuscript p. 241.

Im Dokument Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht (Seite 50-0)